Ireland: Right To Fair Procedures When Investigating Bullying Allegations

In general, an employee is not entitled to be represented by a
solicitor in an internal disciplinary investigation or
hearing. However, in the case of Michael Lyons v Longford
Westmeath Education and Training Board [2017], the High Court
found that where a complaint is made which could result in an
employee's dismissal, the employee is entitled to fair
procedures at the investigation stage. This is even the case prior
to any disciplinary process being commenced. This would include the
right to confront and cross-examine any witnesses and an
entitlement to be legally represented at investigation
meetings.

Mr Lyons was notified that a complaint of bullying had been made
against him by a colleague. An external investigator was appointed
to carry out the investigation. Mr Lyons was invited to submit a
written response to the allegations made and to attend various
meetings and interviews. At no stage during this process was he
afforded the opportunity to cross-examine his colleague. He was
also not allowed to have a legal representative present at the
meetings and interviews.

A report was furnished to Mr Lyons which upheld certain
allegations of bullying made against him. He appealed the findings
of the report but his appeal was rejected. He was then advised by
his employer that as a result of the findings of the investigation
he was required to attend a Stage 4 disciplinary meeting.

Mr Lyons issued Judicial Review proceedings and argued that he
had a right to confront and cross-examine his colleague during the
investigation. He also submitted that it was clear that, as matter
of law and fair procedures, an employee whose job is at stake and
against whom allegations are being made is entitled to be legally
represented at investigation meetings.

Mr Justice Eagar held that it was quite clear that the
investigation was in breach of Mr Lyons' right to fair
procedures. This was due to the refusal to allow legal
representatives to appear on his behalf. He stated that the
processes adopted by the external investigator failed to vindicate
Mr Lyons' good name because of their refusal to hold an
appropriate hearing, whereby he could have, through a solicitor or
barrister, cross-examined his colleague.

He found that it is the actual investigation that requires the
rights to cross-examination and representation, even before the
disciplinary process has started. He ordered that Mr Lyons could
not be invited to a disciplinary meeting as the investigation into
the complaints made against him was fundamentally flawed.

Conclusion

This case indicates that an employee is entitled to be legally
represented and to cross-examine the evidence presented at the
preliminary, fact-finding stages of a bullying investigation. Most
notably, the employee has the benefit of this right before any
disciplinary procedure has formally started. Employers should be
aware of the fact that if they do not afford those rights to
employees during an investigation, there is a risk that a court
could prevent them from proceeding with a disciplinary process
against that employee. This is an issue which needs to be taken
into account when the terms of reference of an investigation are
being considered.

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